Australian Centre for Justice Innovation

Civil Justice Research Online

Access to Justice

4-15-2014

The Dilemmas Posed by Self-Represented Litigants

– The Dark Side
Tania Sourdin
Monash University, tania.sourdin@monash.edu

Nerida Wallace
Monash University

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Recommended Citation
Sourdin, Tania and Wallace, Nerida, "The Dilemmas Posed by Self-Represented Litigants – The Dark Side" (2014). Access to Justice.
Paper 32.
http://www.civiljustice.info/access/32

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Electronic copy available at: http://ssrn.com/abstract=2713561

T. SOURDIN AND N. WALLACE 1
AUSTRAL IAN CENTRE FOR JUST ICE SYSTEM INNOVATION (ACJI)
MONASH UNIVERSITY

The Dilemmas Posed by

Self-Represented Litigants
– The Dark Side

1
Professor Tania Sourdin, Australian Centre for Justice Innovation (ACJI) at Monash University contact
Tania.Sourdin@Monash.edu and Nerida Wallace of Transformation Management Services contact
nerida.wallace@transformation.com.au Parts of this paper are drawn from E. Richardson, T. Sourdin
and N. Wallace, Self-Represented Litigants: Gathering Useful Information, Final Report (ACJI, Monash
University, Melbourne, 2012), available at http://www.civiljustice.info/srl/2/; and Self-Represented
Litigants: Literature Review (ACJI, Monash University, Melbourne, 2012.), available at
http://www.civiljustice.info/srl/1/.

Electronic copy available at: http://ssrn.com/abstract=2713561

Introduction
There is limited information about self-represented litigants (SRLs) in Australia. Past
research has highlighted significant and continuing data and research gaps about the
demographics of those involved in court and tribunal processes and among those who
are without representation. 2 Some reports reveal information about SRLs, although
much available information is dated. For example, research conducted more than a
decade ago in the Family Court of Australia found that, 79 per cent of applicants and
88.4 per cent of respondents in children’s matters were SRLs. 3 In terms of family law
matters in the Federal Magistrate’s Court of Australia, by the year 2003, 70 per cent
of divorce matters concerned SRLs, and there are high numbers of SRLs in child
support and contravention applications. 4
More recent court reports suggests that SRLs are more likely to be active in certain
types of matters, for example the Federal Court of Australia, the majority of SRLs are
involved in migration appeals. 2 Overseas, more recent studies by Macfarlane in
Canada in 2012/13 indicate that 60 per cent of family litigants and 31 per cent of civil
litigants were self-represented, and of these, almost 40 per cent had income levels
above $CAN50,000. 5 The same Canadian research suggests that self-representation is
increasing in respect of litigated matters around the world. 6
Whilst many SRLs appear to be able to represent themselves with some limited
support it is not known how many ‘give up’ because they are unable to continue with
the often difficult task of continuing with litigation. The lack of demographic
information about SRLs (or indeed litigants in general) means that the issues
confronting this population are not adequately explored and there is little comparable
material collected across courts and tribunals to provide guidance about the support
required by this population. 7 The population may also be very diverse and made up of
those who have low levels of literacy or who confront significant access issues
because of their backgrounds and special needs.

2
See E. Richardson, T. Sourdin and N. Wallace, Self-Represented Litigants: Gathering Useful Information,
Final Report (ACJI, Monash University, Melbourne, 2012), available at http://www.civiljustice.info/srl/2/;
and Self-Represented Litigants: Literature Review (ACJI, Monash University, Melbourne, 2012.), available
at http://www.civiljustice.info/srl/1/. See also E. Richardson and T. Sourdin, ‘Mind the gap: making
evidence-based decisions about self-represented litigants’ (2013) 22(4) Journal of Judicial Administration
191–206.
3
ALRC, Part two: The costs of litigation in the Family Court of Australia (Australian Law Reform
Commission, Sydney, June 1999); see alsoJ. Dewar, B. Smith and C. Banks, Litigants in Person in the
Family Court of Australia – Research Report No 20 (Family Court of Australia, Canberra, 2000).
4
Federal Magistrates Court of Australia, Annual Report 2002–2003 (Canberra: Federal Magistrate’s
Court of Australia, 2003).
2
Federal Court of Australia, Annual Report 2010–2011 (Federal Court of Australia, Canberra, 2011), 43.
5
J. MacFarlane, National Research Study – Self Represented Litigant Project (2013) Canada, 2013),
available at www.representingyourselfcanada.com (accessed 4 April 2014)).
6
J. MacFarlane, National Research Study – Self Represented Litigant Project (2013) Canada, 2013),
available at www.representingyourselfcanada.com (accessed 4 April 2014)).
7
See E. Richardson, T. Sourdin and N. Wallace, Self-Represented Litigants: Gathering Useful Information,
Final Report (ACJI, Monash University, Melbourne, 2012), available at http://www.civiljustice.info/srl/2/;
and Self-Represented Litigants: Literature Review (ACJI, Monash University, Melbourne, 2012.), available
at http://www.civiljustice.info/srl/1/. See also E. Richardson and T. Sourdin, ‘Mind the gap: making
evidence-based decisions about self-represented litigants’ (2013) 22(4) Journal of Judicial Administration
191–206.

Self -Represented Litigants –The Dark Side 3

 THE DILEMMAS POSED BY
SELF-REPRESENTED LITIGANTS
– THE DARK SIDE

There are other issues as the needs of this broad SRL population may be obscured by
a currently unknown, but probably small, proportion of the SRL population that is
regarded as ‘obsessive’,’ difficult’, engaged in ‘high conflict behaviour’ or more
simply as ‘mad, bad and dangerous.’ 8 It is this proportion of SRLs – according to many
commentators and people working in the justice sector - that appears to be resistant
to or unable to engage in litigation in a respectful, fair or timely manner and which
require more time, more energy are a greater focus of attention by those working
within courts and tribunals.
This paper is concerned with this group of SRLs, who may not be represented for a
range of reasons but who may, because of their behaviour, raise particular issues for
judicial officers, courts and tribunals and most importantly for the administration of
justice in the whole community. There is no specific or definitive data in Australia
about the size of this group or the impacts. However, there is some data about
mental health issues in the general community that is helpful. For example, large
scale studies in the United States in 2002 and 2008 9 suggest that more than 14% of
the United States population has a personality disorder and another 10% have
maladaptive personality traits.
Whilst many people with mental health issues may be able to represent themselves
successfully and others may be less likely to commence court proceedings
(particularly if suffering from depression and anxiety), some with personality
disorders or maladaptive traits may be more likely to be involved in conflict and be
less able to negotiate agreed outcomes.
In particular, the cohort with high conflict behaviours is more likely to be involved in
court proceedings because they are less likely to resolve issues at an early time or act
in a rational manner. It is also possible that some in this group are more likely to be
self represented because they are unable to afford representation or may be less
likely to maintain relationships with legal practitioners. In order to explore this
cohort, and in the absence of definitive data on the size of this group, it is necessary
to explore the reasons behind self-representation, common perceptions about SRLs
and the impacts on the judiciary as well as possible responses.

Reasons for Self-Representation

There are multiple terms used to describe those who do not have representation,
including litigants in person, pro se litigants, unrepresented litigants, and of course,
self-represented litigants. At times, a distinction is made between those who choose

8
Lady Caroline Lamb referring to Lord Byron in 1812.
9
Recent studies suggest that these figures may be higher although many personality disorders will not
generate high conflict behaviours. See B. Eddy, High conflict people in legal disputes (HCI Press, 2009.
See also US National Institute of Mental Health at http://www.nimh.nih.gov/health/publications/the-
numbers-count-mental-disorders-in-america/index.shtml#Intro (accessed 11 April 2014).The 2007
Australian Mental Health Study in 2007 suggested the figure in Australia was 20% - See
http://www.aihw.gov.au/mental-health/ (accessed 11 April 2014).

4 Self Represented Litigants –The Dark Side

or prefer self-representation and those who are self-represented by circumstances
beyond their control, such as a lack of financial resources. In the latter case, a litigant
may be described as ‘unrepresented’, rather than ‘self-represented’. However, this
distinction is not consistently made in studies and reports on SRLs. Another issue with
terms is that some litigants may have partial assistance or be represented from time
to time, and these nuances may not be recorded by courts or support agencies, and
even if recorded, are rarely reported on.
Little is known about the characteristics of SRLs and the reasons why some litigants
are -self-represented. In Canada, attempts have been made to identify the following
types of SRLs: 10
1. SRLs with an overall lack of social (such as, education, financial, and
community/family support) resources;
2. Low-income SRLs with some social resources;
3. SRLs living with additional social barriers that interfere with accessing
justice;
4. SRLs unable to find an available lawyer and who wish to hire a lawyer;
5. SRLs who were previously represented;
6. SRLs in cases where representation is supposed to be unnecessary;
7. SRLs who could access representation but prefer to self-represent. 11
There is a perception that the number of SRLs is increasing and has been increasing
over the past 15 years, largely attributed in the literature to increased legal costs and
changes to legal aid funding. 12 Australia is not alone in reporting this perception, with
other countries, such as the United States, New Zealand, Canada and the United

10
M. Stratton, Alberta self-represented litigants mapping project – Final Report (Canadian Forum on Civil
Justice, Edmonton, Alberta, 2007)), cited in Canadian Forum on Civil Justice, Alberta Legal Services
Mapping Project, An Overview of Findings from the Eleven Judicial Districts Final Report (Canadian Forum
on Civil Justice, Edmonton, Alberta, July 2011), 89–91.
11
Canadian Forum on Civil Justice, Alberta Legal Services Mapping Project, An Overview of Findings from
the Eleven Judicial Districts Final Report (Canadian Forum on Civil Justice, Edmonton, Alberta, July 2011),
89–91.
12
Senate Legal and Constitutional Affairs References Committee, Access to Justice (Commonwealth of
Australia, Canberra, December 2009); Senate Legal and Constitutional Affairs References Committee,
Inquiry into the Australian Legal Aid System: First Report (Commonwealth of Australia, Canberra, 26
March 1997); Senate Legal and Constitutional Affairs References Committee, Inquiry into the Australian
Legal Aid System: Second Report (Commonwealth of Australia, Canberra, June 1997); Senate Legal and
Constitutional Affairs References Committee, Inquiry into the Australian Legal Aid System: Third Report
(Commonwealth of Australia, Canberra, July 1998); Senate Legal and Constitutional References
Committee, Inquiry into Legal Aid and Access to Justice (Commonwealth of Australia, Canberra, June
2004.). It was noted in by Australian Law Reform Commission in Managing Justice – A review of the
Federal Civil Justice System Report No 89 (Australian Government Print Services, Canberra, 2000) that
there was no clear statistical data to support the claim that SRLs were increasing. However, the Law
Council of Australia in Erosion of Legal Representation in the Australian Justice System Research Report
(February 2004) found that there had been a rise in SRLs based on a survey conducted and some
statistical data. This finding can be contrasted with an earlier report by the Family Court of Australia in
which it was reported that the number of SRLs who are unrepresented throughout the entire court
process are low: Self-represented Litigants – A Challenge Project Report December 2000–December 2002
(Family Court of Australia, 2003), 3.

Self -Represented Litigants –The Dark Side 5

 THE DILEMMAS POSED BY
SELF-REPRESENTED LITIGANTS
– THE DARK SIDE

Kingdom, reporting an increase in the population of SRLs. 13 Studies conducted in

Australia provide data and evidence supporting the increase; however they provide
little information about why the increase is occurring and its impact on the courts. 13
Dewar et al suggest that a number of factors may lead to a person’s decision to
represent themselves in the Family Court:
 difficulty obtaining legal aid either at all or for representation in court
proceedings;
 the cost of legal services: these may be such that a litigant is unable to
afford them at all or that an individual may be encouraged to make a
cost/benefit calculation that the costs incurred in employing a legal
representative outweigh the risks of pursuing litigation without a lawyer;
 disenchantment with lawyers;
 related to the above, a view that family law is not ‘real law’ and therefore
the skills of a lawyer are not necessary;
 a wish to use the court as a forum to air grievances or seek revenge or as
an instrument of harassment;
 the growth in other sources of advice or assistance, such as Community
Legal Centres, support groups or Legal Aid bodies; or
 the simplification of court procedures. 14
Other reasons for self-representation may include a belief in the merits of the case
and a person’s view that they are the best person to present their case instead of a
lawyer. 15 Some SRLs may choose to represent themselves even when holding a grant

13
R. Moorhead and M. Sefton, Litigants in person. Unrepresented litigants in first instance proceedings
(Department of Constitutional Affairs Research Series 2/05, England & Wales, 2005), available at
http://www.familieslink.co.uk/download/july07/DCA%20view%20of%20LIPs.pdf (accessed 19 March 2014);
K. Williams, Litigants in person: a literature review – Research Summary 2/11 (Ministry of Justice, United
Kingdom, June 2011); M. Smith, E. Banbury and S. Ong, Self-Represented Litigants: An Exploratory Study
of Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions (Ministry of Justice,
Wellington, New Zealand, July 2009); New Zealand Law Commission, Dispute Resolution in the Family
Court Report 82 (Wellington, New Zealand, 2003); M. Barrett-Morris, M. Aujla and H. Landerkin, The Self-
Represented Litigant in the Courts: An Annotated Bibliography (Royal Roads University, 2004); M.
Stratton, Alberta self-represented litigants mapping project – Final Report (Canadian Forum on Civil
Justice, Edmonton, Alberta, 2007); Canadian Forum on Civil Justice, Alberta Legal Services Mapping
Project, An Overview of Findings from the Eleven Judicial Districts Final Report (Canadian Forum on Civil
Justice, Edmonton, Alberta, 2011).
13
R. Hunter, A. Genovese, A. Chrzanowski and C. Morris, The changing face of litigation: unrepresented
litigants in the Family Court of Australia (Research Report) (Law and Justice Foundation, August 2002);
Hunter et al found that there was an increase in SRLs in first instance matters, but that numbers of SRLs
on appeal remained consistent for the period of the study for the years 1995–1999.
14
J. Dewar, B. Smith and C. Banks, Litigants in Person in the Family Court of Australia – Research Report
No 20 (Family Court of Australia, Canberra, 2000), 11–12. See also Victorian Law Reform Commission,
Civil Justice Review: Report (Victorian Law Reform Commission, Melbourne, 2008), 564.
15
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000).

6 Self Represented Litigants –The Dark Side

of legal aid. 16 Changes to particular legislation over time may give rise to increases in
litigation in particular areas, a proportion of which will be instigated or defended by
SRLs. 17 Cultural changes may also have led to an increase in SRLs, with self-help and
internet resources more widely accessible, coupled with an emerging ‘do-it-yourself’
culture. 18
Many attempts have been made to support SRLs in Australian and overseas
jurisdictions. The development of more focused legal assistance programs (such as
QPILCH 19), educational resources for judicial officers (discussed further below), the
establishment of court-based programs and information sessions and the
development of SRL-specific materials 20, have all contributed to support for ‘do-it-
yourself’ approaches as well as to mitigating the impact on court resources. However,
understanding of SRL's needs is not universal and in any jurisdiction specific SRL
supports may or may not be available to, or adequate for the needs of, all SRLs.
Judicial officers and court staff report that many SRLs may approach litigation using a
‘Google it’ approach, with limited success or effectiveness.

Perceptions About SRLs

Although SRLs are often consigned to one homogenous (largely problematic) group 21
and it is assumed that they place a strain on the civil justice system, 22 there is little
evidence to support this view and many instances of positive accounts about SRLs. 23
In court publications, for example, there is evidence of a cultural shift towards
recognising SRLs as a legitimate client group that courts need to accommodate. 24
However, the perception that these litigants pose a problem for courts is widespread.
This gives rise to assumptions about SRLs common in most literature and in journal
and other articles, including that SRLs:
 require more court time; 24
 are more likely to require a hearing; 25 and

16
R. Hunter, J. Giddings and A. Chrzanowski, Legal Aid and Self-Representation in the Family Court of
Australia (Griffith University, May 2003).
17
For example, changes to Part VII the Family Law Act 1975 (Cth) led to an increase in residence and
contact orders: see Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law
Council, Canberra, August 2000)), 13.
18
M. Hawkins, Emerging Trends in the Provision of Legal Services: Some Australian Experiences (Speech
presented to the Commonwealth Law Association Conference, Nairobi, 7 September 2007).
19
See http://www.qpilch.org.au/ (accessed 19 March 2014)).
20
See the extensive work in Canada at http://www.representing-yourself.com/ (accessed 19 March
2014)
21
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self-
Represented Litigants (Sydney, 17 September 2004).
22
D. Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165–178.
23
D. Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165–178.
24
Family Court of Australia, Self-represented litigants: A challenge – Project Report December 2000–
December 2002 (Family Court of Australia, 2003). Many Australian courts have developed Litigants in
Person plans and improved information and processes for SRLs.
24
Federal Magistrate’s Court of Australia, Annual Report 2003–2004 (Federal Magistrate’s Court of
Australia, Canberra, 2004).
25
Federal Magistrate’s Court of Australia, Annual Report 2003–2004 (Federal Magistrate’s Court of
Australia, Canberra, 2004).

Self -Represented Litigants –The Dark Side 7

 THE DILEMMAS POSED BY
SELF-REPRESENTED LITIGANTS
– THE DARK SIDE

 increase costs for all parties due to a need for more pre-trial proceedings,
poor issue identification, greater time responding to unclear and
irrelevant evidence and more time spent in hearings. 26
Despite these reports, recent research in the United Kingdom suggests that SRLs with
difficult behaviours are a ‘very small minority’, 25 at least in the lower courts.
It seems likely, and some court decisions report this, that there is a small number of
SRLs who require more court time and are difficult to deal with and that this
population may be greater in higher courts. These SRLs may be difficult to deal with
because of personality disorders and behavioural factors, which may mean that a
particular SRL is more likely to be in dispute and less likely to act in a rational, logical
or helpful manner. It is also possible that some SRLs may initially engage in litigation
in a rational way, however, repeated interactions with other litigants and with the
litigation system may in fact affect the physical and mental health of the SRL, making
it less likely they can continue to engage in a positive, constructive or rational way in
other court-related interactions. 26
Courts indicate that they may have repeated interactions and long-lasting
connections, often over years or decades, with some SRLs who might be regarded as
‘obsessive’. There is evidence that some SRLs will launch multiple actions across many
jurisdictions and appeal most if not all of the decisions made in respect of the
litigation they are involved in. Attempts to control these SRLs through a declaration
that they are ‘vexatious’ can be difficult, time consuming and onerous for those
involved in making the applications. The typical legislative frameworks mean that
there are few cases where such proceedings are taken. 27
In addition sometimes the behaviour can be difficult or problematic but it may not be
‘vexatious’ (or cannot yet be defined in that way) in that the proceedings may not be
‘untenable’ or may lack some other quality. 28 In addition, Australian case law relating
to vexatious declaration suggests that the process is time consuming and difficult in

26
Law Reform Commission of Western Australia, Review of the criminal and civil justice system in
Western Australia – Final Report Project 92 (Law Reform Commission of Western Australia, 1999), 153.
25
See R. Moorhead and M. Sefton, M. Litigants in person. Unrepresented litigants in first instance
proceedings (Department for Constitutional Affairs Research Series 2/05, England & Wales), 2005),
available at http://www.familieslink.co.uk/download/july07/DCA%20view%20of%20LIPs.pdf (accessed 19
March 2014)).
26
See, for example, G. M. Grant. and D. M., Studdert, ‘Poisoned chalice? A critical analysis of the
evidence linking personal injury compensation processes with adverse health outcomes,outcomes’
(2009) 33(3) Melbourne University Law Review 865–885. On litigation neurosis, see F. Campbell,
‘Litigation Neurosis: Pathological responses or rational subversion’ (2006) 26(1) Disability Studies
Quarterly, available at http://dsq-sds.org/article/view/655/832 (accessed 5 April 2014).
27
See Mr R. Clark, Attorney-General, ‘Second Reading Speech Vexatious Proceedings Bill Bill’ in
Parliamentary Debates (Hansard) (Parliament of Victoria, Melbourne, 2014), 371, available at
http://www.parliament.vic.gov.au/images/stories/daily-
hansard/Assembly_2014/Assembly_Daily_Extract_Wednesday_19_February_2014_from_Book_2.pdf.
28
See Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007] FCA 1069 at [44]; Ramsey v Skyring
(1999) 164 ALR 378 at [51]. See also Soden v Kowalski [2011] FCA 318 “For practical purposes, the test
of whether a proceeding is vexatious is whether it is, in Roden J’s words, “so obviously untenable or
manifestly groundless as to be utterly hopeless”.”

8 Self Represented Litigants –The Dark Side

that judges may need to spend a considerable amount of time reviewing complex fact
and legal issues.
In the UK, some limited attention has been paid to this ‘difficult and obsessive’
group, particularly in the appellate area. Decisions dealing with obsessive litigants
include Bhamjee v Forsdick (No 1) 29 and Bhamjee v Forsdick (No 2). 30
In a UK report 31 that was more focused on lower courts, the Master of the Rolls
stated:

There has been a significant increase of obsessive litigants determined

to have no procedural stone unturned, regardless of whether they have
any arguable ground of appeal. Nearly 40% of all who apply for
permission to appeal are litigants in person, of whom only one tenth
can demonstrate that they have arguable grounds of appeal. Yet each of
them is entitled to an oral permission hearing. Each hearing takes about
half an hour.
In addition to this the two Deputy Masters of the court have to spend
about two hours each day on utterly unproductive Registry work:
determining and dealing with appellants notices which the court has no
jurisdiction to entertain, dealing with groundless applications under
Taylor v Lawrence which are flooding in at the rate of 200 a year and
dealing with correspondence relating to defective applications. Four
officers man the relevant section in the Civil Appeals Office. They handle
matters which take up an inordinate amount of the court’s time for very
little advantage.
Further reform of our procedure is required to ensure that our energies
can be directed to providing justice for those who have a valid claim on
our services.

The dimensions of the issue are difficult to determine; however, the same UK
Research Report noted that such litigants could be described as ‘difficult’ and/or
obsessive and that ‘vexatious’ was not a term that could be usefully applied:
There are three main species of behaviour which, although not
uncommonly found in the same litigant, can individually or collectively
lead to the judgment that a litigant is difficult or obsessive:
• The making of far fetched or totally meritless claims;
• The making of repeated claims (or applications within cases)
of a similar type and/or against the same or similar litigants
(re litigation or harassment of individuals);
• Behaving in an abusive and/or uncooperative manner.

29
Bhamjee v Forsdick (No 1) [2003] EWCA Civ 799.
30
Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113.
31
See R. Moorhead and M. Sefton, Litigants in person. Unrepresented litigants in first instance proceedings
(Department for Constitutional Affairs Research Series 2/05, England & Wales), 2005), available at
http://www.familieslink.co.uk/download/july07/DCA%20view%20of%20LIPs.pdf (accessed 19 March
2014)).

Self -Represented Litigants –The Dark Side 9

 THE DILEMMAS POSED BY
SELF-REPRESENTED LITIGANTS
– THE DARK SIDE

Vexatious litigant is a term of legal art and for that reason we avoid
using the term here, though such litigants usually have to have indulged
repeatedly in the inappropriate issuing of claims or applications.
Within the legal system, principles of fairness, legitimacy and efficiency require that
court and tribunal processes are conducted fairly, and many judicial officers indicate
that this minority group of SRLs makes it difficult to conduct processes in these cases,
in a fair manner. It has been suggested that the Australian legal system itself is ill-
equipped to deal with SRLs and is an alienating environment for many. This literature
suggests that much of the Australian litigation system is based on professionalism,
and many SRLs could find themselves at a disadvantage to adequately understand
court procedures, rules of court, the language of the law and to represent their cases
in court. 32
It remains unclear what proportion of SRLs are disadvantaged because the legal
system is poorly designed to accommodate SRLs or whether the difficulties arise as a
result of the attributes of the litigants themselves. 33 For example, as previously noted,
there is proportion of SRLs who successfully navigate the court system relying on their
own resources. A further group may do quite well with only minimal coordination and
navigation assistance from the court. However either explanation may hide a smaller
group that distorts the system to the detriment of those whom they oppose in court
actions and consumes more court time and more resources. In Canada, this small
group has been called ’celebrity’ SRLs 34 –They may often be the focus of judicial and
court concern although they may represent only a tiny proportion of the SRL
population.

Impacts on the Judiciary

When dealing with SRLs, judicial officers may be required to spend more time
conducting a hearing and may face more uncertainty as well as differing and often
higher levels of judicial involvement and commitment. 35 For example, in the context
of the judicial engagement required, although a judge is the impartial arbiter in the
system in which Australian courts operate, the judge may need to depart from this
role when dealing with SRLs. Recent discussion relating to this topic suggests that
when a judge deals with an SRL they may need to apply ‘substantive impartiality’, that
is, adjudicators need to engage with SRLs and ensure they are informed about their

32
D. Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165–178.
33
Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in
England and Wales (HMSO, London, June 1995), 119; D. Webb, ‘The right not to have a lawyer’ (2007) 16
Journal of Judicial Administration 165–178.
34
J. MacFarlane, ‘Self-Represented Litigants in Family Law’, Paper presented at ABA Conference, Miami,
3 April 2014.
35
See E. Richardson, Self-represented parties: A trial management guide for the judiciary (County Court
of Victoria, Melbourne, 2004). Case duration is likely to be longer in most cases where the SRL is
‘difficult and/ or obsessive and this is the most reported impact on the judiciary. Where the SRL is
inactive, cases may be shorter than average. However, a just outcome does not seem to be related to
SRL activity.

10 Self Represented Litigants –The Dark Side

rights, procedural options and the possible detriment they may face. 36 This approach
will necessarily take more time than a hearing process where representatives can be
relied upon to support litigants and provide external explanations.
However, the extent to which judges depart from processes that are used when
dealing with represented litigants or the impact of more difficult SRL behaviour is not
well understood and there are clear and significant differences between different
courts, registries and jurisdictions partly because some are better able to refer to
support agencies or supportive material and processes. 37
There are other issues that can arise with SRLs and make it difficult for a ‘fair’ hearing
to be conducted. For example, a party opposing an SRL or a witness for that party may
be required to undergo cross-examination by an SRL, which may be traumatic in some
instances. 38 In addition, the party opposing the SRL may expend or incur more legal
costs as a result of delays or time taken at trial by the SRL, 39 and may be more likely to
feel a sense of injustice and may be left feeling aggrieved with the court process
because of the assistance provided to the SRL. 40
These issues may be magnified where obsessive or difficult behaviour is present and
where the SRL is using the hearing process as a means to cause harm to the other
party and potentially causing additional cost with limited court supervision.
In such circumstances, it is also more likely that a judicial officer will be required to
spend time explaining court procedures, rules of evidence and issue identification.
They may need to spend more time crafting judgements that reduce opportunities for
further litigation. Court staff may be required to perform more work in explaining
processes and assisting with filling out and lodging of court forms. 41 In addition,
working with SRLs can increase the pressure on the judicial officer to ensure justice is
served through the provision of assistance and information, 42 and this impact can be
magnified where difficult or obsessive behaviour is present and where judicial stress
may be a reality. 43

36
See M. Flaherty, ‘Self-litigants and Represented Litigants: A Sea Change in Adjudication’, in P. Oliver
and G. Mayeda (eds), Principles and Pragmatism: Essays in Honour of Louise Charron (LexisNexis, 2014),
Ottawa Faculty of Law Working Paper No. 2013-07 (October 2013), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2348708 (accessed on 19 March 2014).
37
R. Hunter, Family Law Case Profiles, (Justice Research Centre, Law Foundation of New South Wales,
Sydney, June 1999.).
38
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000); Law Council of Australia, Erosion of Legal Representation in the Australian
Justice System Research Report (February 2004).
39
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000).
40
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
41
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000). Note Court staff may inadvertently extend time for further lodgements without
understanding the cost implications or the previous record of the applicant.
42
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
43
J. Dewar, B. Smith and C. Banks, Litigants in Person in the Family Court of Australia – Research Report
No 20 (Family Court of Australia, Canberra, 2000).

Self -Represented Litigants –The Dark Side 11

 THE DILEMMAS POSED BY
SELF-REPRESENTED LITIGANTS
– THE DARK SIDE

Techniques Available to the Judiciary

There is some material about judicial interventions and approaches that judges can
use to assist those SRLs described as ‘obsessive’ and ‘difficult’. In some jurisdictions,
much can be done outside the courtroom to provide support and ‘link in’ with other
services to promote earlier resolution and understanding of processes and outcomes.
For example, there are many examples of problem-solving courts where judges are
actively involved in ensuring that an SRL understands and can refer litigants to
external services. Such interventions can be useful where alcohol and substance
abuse is an issue and also to ensure that follow-up reporting and management take
place. 44 Therapeutic justice is oriented towards using integrated approaches to focus
on improving the well-being and mental health of those with legal issues and
supporting the interpersonal skills of lawyers, judges and others.
In addition, in some cases it may be that Alternative Dispute Resolution (ADR) can
assist at least in narrowing issues or with planning and this can assist the judiciary as
SRLs are better prepared to discuss issues and concerns. However, routinely, in many
jurisdictions, SRLs are not referred to ADR (which can be coupled with unbundled
legal or related services to support decision-making). While ADR may not necessarily
result in complete resolution, it can be coupled with conflict coaching and dispute
management interventions that can assist litigants to focus on long-term interests
and goals.
There may be specific behavioural interventions that can assist. 45 Although there is
material that suggests that there is some evidence to show that therapeutic
approaches are ineffective unless used in tandem with cognitive therapy focusing on
consequences rather than the rights and wrongs of the issue, 46 there is a wealth of
literature suggesting that careful attention to procedural justice and therapeutic
interventions can support SRLs. In addition, in the mental health court area, there is
work that suggests that those with mental health problems can experience
improvement in their symptoms and health if court interactions support procedural
justice. 47
Procedural justice in this context requires that the litigant’s ‘voice’ is heard and that
there is an emphasis on respectful, courteous communication and on dignity. Some

44
Videos and supportive documentation relating to techniques used in court through the
Neighbourhood Justice Centre initiatives area available at
http://www.civiljustice.info/do/search/?q=NJC&start=0&context=2785725 (accessed 4 April 2014).are
available at http://www.neighbourhoodjustice.vic.gov.au/. See also http://www.civiljustice.info/njc/
(accessed 8 April 2014).
45
See B. Eddy, High conflict people in legal disputes (HCI Press, 2009.).
46
PaulP. E. Mullen and GrantG. Lester, ‘Vexatious Litigants andUnusually PersistentComplainantsand
Unusually Persistent Complainants and Petitioners: From Querulous ParanoiatoParanoia to Querulous
BehaviourBehav.Behaviour’ (2006) 24 Behav. Sci. Law 333–349.
47
K. A. Beijersbergen, A. J. Dirkzwager, V. I. Eichelsheim, P. H. van der Laan and P.
Nieuwbeerta, (accessed 5 April 2014)Procedural justice and prisoners’ mental health problems:
A longitudinal study (2013) Crim Behav Ment Health, available at
https://www.ncbi.nlm.nih.gov/pubmed/24009140 (accessed 5 April 2014).

12 Self Represented Litigants –The Dark Side

studies report that judicial interactions that take place with respect and dignity affect
litigants in that they may be more likely to perceive the court as ‘legitimate’ and more
likely to consider that the goals expressed by the court are also their own. 48
Other judicial intervention options can include clearly breaking the dispute into issues
and ‘hearing’ the issues. In addition, judicial officers can:
 provide preliminary explanations of the process and use these as a
reference point. There is extensive research about procedural justice and
what can support positive engagements in court and explanations
supporting positive perceptions about procedural justice. 51 There is also
a wealth of research that shows that procedural explanation can reduce
stress and anxiety and that this effect may be more significant where
mental illness or high-conflict behaviour is present. 49
 adopt and use particular communication techniques – to model, where
appropriate, responses that demonstrate empathy, attention and
respect. 50
 support short adjournments, encourage SRL list making (which can
promote more rational behaviour), and early issue identification with
visual cues and printed resource and other materials.impose firm overall
time limits that set expectations while noting that a propensity to argue
about the fairness of deadlines may ensue. Where obsessive behaviour is
present there may be a greater need to set guidelines and limits as the
SRL may have difficulty imposing what may appear to be rational limits
on their own behaviour. Overall, the approaches used will require
cohesive court wide approaches and training of court staff.
Communications with the court should be managed and protocols should
be in place and published to deter inappropriate behaviour and contact. 51
 join the SRL in problem-solving about resolution of the case, encourage
positive approaches while pointing out the legal consequences and
constraints.
 indicate to the representative for the other side the extent of assistance
that will be offered to the SRL and ask for feedback before providing that

48
See H. W. Wales, V. A. Hiday and B. Ray, ‘Procedural justice and the mental health court judge’s role in
reducing recidivism’ (2010) International Journal of Law and Psychiatry, available at
http://dx.doi.org/10.1016/j.ijlp.2010.06.009. See also http://big.assets.huffingtonpost.com/gtown.pdf.
51
See T. Sourdin and A. Zariski (eds), The Multi-Tasking Judge (Thomson Reuters, Sydney. 2013) and in
particular Chapters 2, 3 and 4.
49
See T Sourdin and A Zariski (eds), The Multi Tasking Judge (2013, Thomson Reuters) and in particular
Chapters 2, 3 and 4.
50
See B. Eddy, High conflict people in legal disputes, (HCI Press, 2009.).
51
Justice E. Kyrou, ‘Litigants in Person’, Paper presented at the Managing People in Court Conference,
National judicial College, Canberra, 10 February 2013, available at http://njca.com.au/wp-
content/uploads/2013/07/Justice-Kyrou-.pdf.

Self -Represented Litigants –The Dark Side 13

 THE DILEMMAS POSED BY
SELF-REPRESENTED LITIGANTS
– THE DARK SIDE

assistance to maintain a perception of fair treatment for the other

parties. Brief standardised checklists may be helpful 52
Importantly, judicial interventions need to be coupled with consistent messages and
processes across courts. Cost disincentives in the context of difficult behaviour may
also need to be carefully considered so that cost sanctions occur quickly and are
closely related in time to the instances of behaviour that lead to the cost order being
made. Current cost sanction approaches employed by Judges within existing
arrangements may not operate as a disincentive if not sufficiently proximate in time
to an event.

Conclusion
The challenges posed by SRLs have resulted in numerous programming and policy
responses within Australian courts at both the state and federal levels. These
responses include increased assistance and written information for SRLs (for example,
the outreach services provided at the Administrative Appeals Tribunal), development
of self-help services (including internet-based resources, online and off-line videos),
legal advice services, 55 education specifically targeting at judicial skills, 53 bench books
for judicial officers and the commissioning of a small number of studies on the impact
of SRLs. 54 Legal aid funding has been supported for certain types of hearings, 55 and
pro bono service support is also a feature of some courts and tribunals and supported
by legal clinic work.
Many court and tribunal services have been adapted to support SRLs and some
tribunals and courts increasingly cater to this group of litigants. However despite this
work, it is clear that some SRLs are not supported adequately and require more
support if they are to pursue legal rights. In addition, some SRLs may be treated
differently from other represented litigants and this may not necessarily be
advantageous or helpful. For example, although many matters involving SRLs are
resolved prior to hearing, it is not known how many settle with the assistance of an
ADR process and whether cases involving SRLs may settle ‘later’ because ADR is not
always available for this cohort. In some courts and tribunals, SRLs are specifically
excluded from ADR programs.

52
Justice E. Kyrou, ‘Litigants in Person’, Paper presented at the Managing People in Court Conference,
National judicial College, Canberra, 10 February 2013, 47, available at http://njca.com.au/wp-
content/uploads/2013/07/Justice-Kyrou-.pdf.
55
An example is the Self-Representation Civil Law Service (SRCLS) in Queensland. The SRCLS is modelled
on the Citizens Advice Bureau, which operates in the Royal Courts of Justice in London.
53
As with the Judicial College of Victoria from 2011 to 2014.
54
The extent to which these various initiatives have assisted SRLs or courts in dealing with SRLs is not
known: see, for example, Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Law
Reform Commission, Melbourne, 2008), 564, regarding a discussion on the impact on pro-bono schemes.
See also M. Dye, An Evaluation of Services for Self-Represented Litigants in the Federal Magistrate’s
Court (Federal Magistrate’s Court of Australia, Canberra, October 2004) for a discussion of the various
materials and services provided to SRLs and whether SRLs found them helpful.
55
Family Court of Australia, Self-represented litigants: A challenge – Project Report December 2000–
December 2002 (Family Court of Australia, 2003).

14 Self Represented Litigants –The Dark Side

Initial screening and triaging of cases could be introduced as a preliminary step in
court processes, and all parties could be given the opportunity to be involved in ADR
processes that could be oriented towards case management and greater issue
identification. New technology solutions may be adapted such as telephone and
video-conferencing if screening indicates these or other approaches might be
appropriate. In addition, information, DIY and technology supports must become
commonplace in the court system, and with difficult and obsessive litigants, specialist,
‘joined-up’ services and case management meetings may assist to meet underlying
needs and provide more supportive frameworks.
For those SRLs that pose particular issues in terms of their obsessive and difficult
behaviours, it is critical to determine the extent, nature and impact of these
behaviours. A reliable database on the instance of SRLs in Australian courts is
required, together with demographic information and a new categorisation that
reflects the adverse impacts of these behaviours. Measuring these categories will
enable new and tested strategies to be targeted where they are needed most.
Possible categories could recognise more readily those who have been referred to
other services, those who have not, those who raise safety or related issues, those
who are declared vexatious and those who have a number of actions (including in
other jurisdictions -to determine whether more holistic cross-jurisdictional responses
could assist).
Securing strong interfaces with support agencies, technological innovation that can
help to support, inform, manage and monitor (and may build more ‘ownership’) as
well as better survey data about how justice systems are working from the SRL
perspective will all serve to improve the overall SRL experiences, assist with future
system design issues and assist to ensure that effective processes are in place for
those SRLs who may have more difficult and obsessive behaviours.

Self -Represented Litigants –The Dark Side 15